Southern States Landfill, Inc. v. Georgia Dep't of Natural Resources

The court rules that the provisions of the Georgia Comprehensive Solid Waste Management Act (GCSWMA), and regulations of the Georgia Department of Natural Resources Environmental Protection Division (EPD) governing out-of-state solid waste, are unconstitutional burdens on interstate commerce in violation of the dormant Commerce Clause, and enjoins Georgia from enforcing the provisions. Private landfill owners challenged the constitutionality of Georgia's provisions after they sought to receive out-of-state solid waste for disposal in their landfills, but Georgia denied them permission to receive such waste without a "special solid waste" permit, which required a person wishing to handle out-of-state waste to comply with provisions applicable to in-state waste handling, and several requirements not applicable to in-state waste. The provisions required permitees to develop and implement a waste analysis plan capable of identifying representative samples of all waste received by the facility; to carry a manifest with all out-of-state waste transported within Georgia, to identify the quantity, composition, and origin, routing, and destination of special solid waste during its transport from point of generation to point of disposal; pay a $10 per ton fee for disposal; be subject to random inspection by the EPD; and limit the effectiveness of a special waste permit to 10 years.

The court holds that the private landfill owners have met their burden by showing that the provisions are not only facially discriminatory against the handling of out-of-state waste, but are discriminatory in their purpose and effect. The provisions are facially discriminatory against out-of-state waste, because they expressly differentiate between in-state and out-of-state waste, and many administrative burdens are placed on the handling of out-of-state waste that are not imposed on in-state waste handling. Testimony of the EPD director further reveals that the purpose of the provisions was to discriminate against out-of-state waste generators.

The court, applying a strict scrutiny test, next holds that the state has failed to justify the discrimination imposed under the provisions. The state has produced no evidence that out-of-state waste contains more hazardous materials than in-state waste. Georgia's position is based on pure speculation that out-of-state generators are likely to break the law. Further, Georgia's scheme does not succeed in serving a legitimate local concern, which the state declared to be the prevention of disposing of hazardous waste and other prohibited substances in Georgia's landfills. While the provisions may prevent the disposal of prohibited substances in out-of-state waste in Georgia's landfills, the regulations do not prevent prohibited substances from being commingled in in-state waste. Moreover, Georgia's assertion that in-state waste does not require close monitoring because Georgia's waste generators are more likely to follow the provisions is a protectionist attitude that does not support a valid Commerce Clause claim.

The court holds that the additional requirements violate the Commerce Clause. First, Georgia's requirement that handlers of out-of-state waste obtain special permits is based on the theory that out-of-state waste is more dangerous than in-state waste, which the court has invalidated. Nonetheless, even assuming that out-of-state waste is more dangerous, other less discriminatory means of protecting Georgia's landfills are available. Next, the requirement that handlers of out-of-state waste prepare a waste analysis plan is premised on a greater trust of in-state waste handlers, but that does not justify targeting out-of-state waste handlers. In addition, the court holds that the manifest requirement is overly burdensome, since the state has not shown why a similar requirement for in-state waste handlers is not also useful for information purposes. The court holds that the $10 fee on out-of-state waste is unconstitutional based on the recent U.S. Supreme Court decision, Chemical Waste Management, Inc. v. Hunt, 22 ELR 20909. Finally, the court holds that the provision requiring out-of-state generators that dispose of waste in Georgia to authorize EPD inspections is invalid under the Commerce Clause. Georgia has not provided any evidence that the mechanisms of enforcement, including civil and criminal penalties for violations of the provisions, while apparently adequate for policing in-state waste handlers, are inadequate for effectively policing out-of-state waste handlers.